Page 1 of 28 PHIEA 20-01 Exchange Assister Services CONTRACT TERMS AND CONDITIONS V.1 CONTRACT-001.1a Contract Terms and Conditions (Nov 30 2006) The Contract with the Selected Respondent (who shall become the "Contractor") shall include the following terms and conditions: V.2 CONTRACT-002.1d Term of Contract – Contract (May 2012) The initial term of the Contract shall be 02 year(s) and 00 month(s). The term of the Contract shall commence on the Effective Date (as defined below) and shall end on the Expiration Date identified in the Contract, subject to the other provisions of the Contract. The Effective Date shall be: a) the Effective Date printed on the Contract after the Contract has been fully executed by the Contractor and the Commonwealth (signed and approved as required by Commonwealth contracting procedures) or b) the "Valid from" date printed on the Contract, whichever is later. V.3 CONTRACT-002.2a Renewal of Contract Term (Nov 30 2006) The Contract may be renewed for a maximum of 3 additional 1-year term(s), so long as Commonwealth provides written notice to Contractor of its intention to extend the Contract by letter prior to the expiration of the term of the agreement, or any extension thereof. The Commonwealth may exercise the renewal as individual year or multiple year term(s). Any renewal will be under the same terms, covenants and conditions. No further document is required to be executed to renew the term of the contract. V.4 CONTRACT-002.3 Extension of Contract Term (Nov 30 2006) The Commonwealth reserves the right, upon notice to the Contractor, to extend any single term of the Contract for up to three (3) months upon the same terms and conditions. V.5 CONTRACT-003.1b Signatures – Contract (July 2015) The Contract shall not be a legally binding contract until the fully executed Contract has been sent to the Contractor. No Commonwealth employee has the authority to verbally direct the commencement of any work or delivery of any supply under this Contract prior to the Effective Date. The Contractor hereby waives any claim or cause of action for any service or work performed prior to the Effective Date. The Contract may be signed in counterparts. The Contractor shall sign the Contract and return it to the Commonwealth. After the Contract is signed by the Contractor and returned to the Commonwealth, it will be processed for Commonwealth signatures and approvals. When the Contract has been signed and approved by the Commonwealth as required by Commonwealth
Revised 1/14/2008CONTRACT TERMS AND CONDITIONS
V.1 CONTRACT-001.1a Contract Terms and Conditions (Nov 30 2006) The
Contract with the Selected Respondent (who shall become the
"Contractor") shall include the following terms and
conditions:
V.2 CONTRACT-002.1d Term of Contract – Contract (May 2012) The
initial term of the Contract shall be 02 year(s) and 00 month(s).
The term of the Contract shall commence on the Effective Date (as
defined below) and shall end on the Expiration Date identified in
the Contract, subject to the other provisions of the Contract. The
Effective Date shall be: a) the Effective Date printed on the
Contract after the Contract has been fully executed by the
Contractor and the Commonwealth (signed and approved as required by
Commonwealth contracting procedures) or b) the "Valid from" date
printed on the Contract, whichever is later.
V.3 CONTRACT-002.2a Renewal of Contract Term (Nov 30 2006) The
Contract may be renewed for a maximum of 3 additional 1-year
term(s), so long as Commonwealth provides written notice to
Contractor of its intention to extend the Contract by letter prior
to the expiration of the term of the agreement, or any extension
thereof. The Commonwealth may exercise the renewal as individual
year or multiple year term(s). Any renewal will be under the same
terms, covenants and conditions. No further document is required to
be executed to renew the term of the contract.
V.4 CONTRACT-002.3 Extension of Contract Term (Nov 30 2006) The
Commonwealth reserves the right, upon notice to the Contractor, to
extend any single term of the Contract for up to three (3) months
upon the same terms and conditions.
V.5 CONTRACT-003.1b Signatures – Contract (July 2015) The Contract
shall not be a legally binding contract until the fully executed
Contract has been sent to the Contractor. No Commonwealth employee
has the authority to verbally direct the commencement of any work
or delivery of any supply under this Contract prior to the
Effective Date. The Contractor hereby waives any claim or cause of
action for any service or work performed prior to the Effective
Date. The Contract may be signed in counterparts. The Contractor
shall sign the Contract and return it to the Commonwealth. After
the Contract is signed by the Contractor and returned to the
Commonwealth, it will be processed for Commonwealth signatures and
approvals. When the Contract has been signed and approved by the
Commonwealth as required by Commonwealth
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contracting procedures, the Commonwealth shall create a Contract
output form which shall: 1) clearly indicate "Fully executed" at
the top of the form; 2) include a printed Effective Date and 3)
include the printed name of the Purchasing Agent indicating that
the document has been electronically signed and approved by the
Commonwealth. Until the Contractor receives the Contract output
form with this information on the Contract output form, there is no
legally binding contract between the parties. The fully executed
Contract may be sent to the Contractor electronically or through
facsimile equipment. The electronic transmission of the Contract
shall require acknowledgement of receipt of the transmission by the
Contractor. Receipt of the electronic or facsimile transmission of
the Contract shall constitute receipt of the fully executed
Contract. The Commonwealth and the Contractor specifically agree as
follows:
a. No handwritten signature shall be required in order for the
Contract to be legally enforceable.
b. The parties agree that no writing shall be required in order to
make the Contract legally
binding, notwithstanding contrary requirements in any law. The
parties hereby agree not to contest the validity or enforceability
of a genuine Contract or acknowledgement issued electronically
under the provisions of a statute of frauds or any other applicable
law relating to whether certain agreements be in writing and signed
by the party bound thereby. Any genuine Contract or acknowledgement
issued electronically, if introduced as evidence on paper in any
judicial, arbitration, mediation, or administrative proceedings,
will be admissible as between the parties to the same extent and
under the same conditions as other business records originated and
maintained in documentary form. Neither party shall contest the
admissibility of copies of a genuine Contract or acknowledgements
under either the business records exception to the hearsay rule or
the best evidence rule on the basis that the Contract or
acknowledgement were not in writing or signed by the parties. A
Contract or acknowledgment shall be deemed to be genuine for all
purposes if it is transmitted to the location designated for such
documents.
c. Each party will immediately take steps to verify any document
that appears to be obviously
garbled in transmission or improperly formatted to include
re-transmission of any such document if necessary.
V.6 CONTRACT-004.1a Definitions (Oct 2013)
As used in this Contract, these words shall have the following
meanings:
a. Agency: The department, board, commission or other agency of the
Commonwealth of Pennsylvania listed as the Purchasing Agency. If a
COSTARS entity or external procurement activity has issued an order
against this contract, that entity shall also be identified as
"Agency".
b. Contracting Officer: The person authorized to administer this
Contract for the
Commonwealth and to make written determinations with respect to the
Contract.
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c. Days: Unless specifically indicated otherwise, days mean
calendar days. d. Developed Works or Developed Materials: All
documents, sketches, drawings, designs,
works, papers, files, reports, computer programs, computer
documentation, data, records, software, samples or any other
tangible material without limitation authored or prepared by
Contractor as the work product covered in the scope of work for the
Project.
e. Documentation: All materials required to support and convey
information about the
services required by this Contract. It includes, but is not
necessarily restricted to, written reports and analyses, diagrams,
maps, logical and physical designs, system designs, computer
programs, flow charts, disks, and/or other machine-readable storage
media.
f. Services: All Contractor activity necessary to satisfy the
Contract.
V.7 CONTRACT-005.1b Agency Purchase Orders (July 2015)
The Agency may issue Purchase Orders against the Contract. These
orders constitute the Contractor's authority to make delivery. All
Purchase Orders received by the Contractor up to and including the
expiration date of the Contract are acceptable and must be
performed in accordance with the Contract. Each Purchase Order will
be deemed to incorporate the terms and conditions set forth in the
Contract. Purchase Orders may be electronically signed by the
Agency. The electronically printed name of the purchaser represents
the signature of that individual who has the authority, on behalf
of the Commonwealth, to authorize the Contractor to proceed.
Purchase Orders may be issued electronically or through facsimile
equipment. The electronic transmission of a purchase order shall
require acknowledgement of receipt of the transmission by the
Contractor. Receipt of the electronic or facsimile transmission of
the Purchase Order shall constitute receipt of an order. Orders
received by the Contractor after 4:00 p.m. will be considered
received the following business day. The Commonwealth and the
Contractor specifically agree as follows:
a. No handwritten signature shall be required in order for the
Contract or Purchase Order to be legally enforceable.
b. The parties agree that no writing shall be required in order to
make the Purchase Order
legally binding. The parties hereby agree not to contest the
validity or enforceability of a Purchase Order or acknowledgement
issued electronically under the provisions of a statute of frauds
or any other applicable law relating to whether certain agreements
be in writing and signed by the party bound thereby. Any Purchase
Order or acknowledgement issued electronically, if introduced as
evidence on paper in any judicial, arbitration, mediation, or
administrative proceedings, will be admissible as between the
parties to the same extent and under the same conditions as other
business records originated and maintained in documentary form.
Neither party shall contest the admissibility of copies of Purchase
Orders or acknowledgements under either the business records
exception to the hearsay rule or the best evidence rule on the
basis that the Purchase Order or acknowledgement
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were not in writing or signed by the parties. A Purchase Order or
acknowledgment shall be deemed to be genuine for all purposes if it
is transmitted to the location designated for such documents.
c. Each party will immediately take steps to verify any document
that appears to be obviously
garbled in transmission or improperly formatted to include
re-transmission of any such document if necessary.
Purchase Orders under ten thousand dollars ($10,000) in total
amount may also be made in person or by telephone using a
Commonwealth Purchasing Card. When an order is placed by telephone,
the Commonwealth agency shall provide the agency name, employee
name, credit card number, and expiration date of the card.
Contractors agree to accept payment through the use of the
Commonwealth Purchasing Card.
V.8 CONTRACT-006.1 Independent Prime Contractor (Oct 2006) In
performing its obligations under the Contract, the Contractor will
act as an independent contractor and not as an employee or agent of
the Commonwealth. The Contractor will be responsible for all
services in this Contract whether or not Contractor provides them
directly. Further, the Contractor is the sole point of contact with
regard to all contractual matters, including payment of any and all
charges resulting from the Contract.
V.9 CONTRACT-007.01b Delivery of Services (Nov 30 2006) The
Contractor shall proceed with all due diligence in the performance
of the services with qualified personnel, in accordance with the
completion criteria set forth in the Contract.
V.10 CONTRACT-007.02 Estimated Quantities (Nov 30 2006) It shall be
understood and agreed that any quantities listed in the Contract
are estimated only and may be increased or decreased in accordance
with the actual requirements of the Commonwealth and that the
Commonwealth in accepting any bid or portion thereof, contracts
only and agrees to purchase only the materials and services in such
quantities as represent the actual requirements of the
Commonwealth. The Commonwealth reserves the right to purchase
materials and services covered under the Contract through a
separate competitive procurement procedure, whenever Commonwealth
deems it to be in its best interest.
V.11 CONTRACT-008.1a Warranty (Oct 2006) The Contractor warrants
that all items furnished and all services performed by the
Contractor, its agents and subcontractors shall be free and clear
of any defects in workmanship or materials. Unless otherwise stated
in the Contract, all items are warranted for a period of one year
following delivery by the Contractor and acceptance by the
Commonwealth. The Contractor shall repair, replace or otherwise
correct any problem with the delivered item. When an item is
replaced, it shall be replaced with an item of equivalent or
superior quality without any additional cost to the
Commonwealth.
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V.12 CONTRACT-009.1c Patent, Copyright, and Trademark Indemnity
(Oct 2013) The Contractor warrants that it is the sole owner or
author of, or has entered into a suitable legal agreement
concerning either: a) the design of any product or process provided
or used in the performance of the Contract which is covered by a
patent, copyright, or trademark registration or other right duly
authorized by state or federal law or b) any copyrighted matter in
any report, document or other material provided to the Commonwealth
under the contract. The Contractor shall defend any suit or
proceeding brought against the Commonwealth on account of any
alleged patent, copyright or trademark infringement in the United
States of any of the products provided or used in the performance
of the Contract. This is upon condition that the Commonwealth shall
provide prompt notification in writing of such suit or proceeding;
full right, authorization and opportunity to conduct the defense
thereof; and full information and all reasonable cooperation for
the defense of same. As principles of governmental or public law
are involved, the Commonwealth may participate in or choose to
conduct, in its sole discretion, the defense of any such action. If
information and assistance are furnished by the Commonwealth at the
Contractor's written request, it shall be at the Contractor's
expense, but the responsibility for such expense shall be only that
within the Contractor's written authorization. The Contractor shall
indemnify and hold the Commonwealth harmless from all damages,
costs, and expenses, including attorney's fees that the Contractor
or the Commonwealth may pay or incur by reason of any infringement
or violation of the rights occurring to any holder of copyright,
trademark, or patent interests and rights in any products provided
or used in the performance of the Contract. If any of the products
provided by the Contractor in such suit or proceeding are held to
constitute infringement and the use is enjoined, the Contractor
shall, at its own expense and at its option, either procure the
right to continue use of such infringement products, replace them
with non- infringement equal performance products or modify them so
that they are no longer infringing. If the Contractor is unable to
do any of the preceding, the Contractor agrees to remove all the
equipment or software which are obtained contemporaneously with the
infringing product, or, at the option of the Commonwealth, only
those items of equipment or software which are held to be
infringing, and to pay the Commonwealth: 1) any amounts paid by the
Commonwealth towards the purchase of the product, less straight
line depreciation; 2) any license fee paid by the Commonwealth for
the use of any software, less an amount for the period of usage;
and 3) the pro rata portion of any maintenance fee representing the
time remaining in any period of maintenance paid for. The
obligations of the Contractor under this paragraph continue without
time limit. No costs or expenses shall be incurred for the account
of the Contractor without its written consent.
V.13 CONTRACT-009.1d Ownership Rights (Oct 2006)
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The Commonwealth shall have unrestricted authority to reproduce,
distribute, and use any submitted report, data, or material, and
any software or modifications and any associated documentation that
is designed or developed and delivered to the Commonwealth as part
of the performance of the Contract.
V.14 CONTRACT-010.1a Acceptance (Oct 2006) No item(s) received by
the Commonwealth shall be deemed accepted until the Commonwealth
has had a reasonable opportunity to inspect the item(s). Any
item(s) which is discovered to be defective or fails to conform to
the specifications may be rejected upon initial inspection or at
any later time if the defects contained in the item(s) or the
noncompliance with the specifications were not reasonably
ascertainable upon the initial inspection. It shall thereupon
become the duty of the Contractor to remove rejected item(s) from
the premises without expense to the Commonwealth within fifteen
(15) days after notification. Rejected item(s) left longer than
fifteen (15) days will be regarded as abandoned, and the
Commonwealth shall have the right to dispose of them as its own
property and shall retain that portion of the proceeds of any sale
which represents the Commonwealth's costs and expenses in regard to
the storage and sale of the item(s). Upon notice of rejection, the
Contractor shall immediately replace all such rejected item(s) with
others conforming to the specifications and which are not
defective. If the Contractor fails, neglects or refuses to do so,
the Commonwealth shall then have the right to procure a
corresponding quantity of such item(s), and deduct from any monies
due or that may thereafter become due to the Contractor, the
difference between the price stated in the Contract and the cost
thereof to the Commonwealth.
V.15 CONTRACT-011.1a Compliance With Law (Oct 2006) The Contractor
shall comply with all applicable federal and state laws and
regulations and local ordinances in the performance of the
Contract.
V.16 CONTRACT-013.1 Environmental Provisions (Oct 2006) In the
performance of the Contract, the Contractor shall minimize
pollution and shall strictly comply with all applicable
environmental laws and regulations, including, but not limited to:
the Clean Streams Law Act of June 22, 1937 (P.L. 1987, No. 394), as
amended 35 P.S. Section 691.601 et seq.; the Pennsylvania Solid
Waste Management Act, Act of July 7, 1980 (P.L. 380, No. 97), as
amended, 35 P.S. Section 6018.101 et seq.; and the Dam Safety and
Encroachment Act, Act of November 26, 1978 (P.L. 1375, No. 325), as
amended, 32 P.S. Section 693.1.
V.17 CONTRACT-014.1 Post-Consumer Recycled Content (June 2016)
Except as specifically waived by the Department of General Services
in writing, any products which are provided to the Commonwealth as
a part of the performance of the Contract must meet the minimum
percentage levels for total recycled content as specified by the
Environmental Protection Agency in its Comprehensive Procurement
Guidelines, which can be found at
https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program.
V.18 CONTRACT-014.3 Recycled Content Enforcement (Feb 2009)
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The Contractor may be required, after delivery of the Contract
item(s), to provide the Commonwealth with documentary evidence that
the item(s) was in fact produced with the required minimum
percentage of post-consumer and recovered material content.
V.19 CONTRACT-015.1A Compensation/Expenses (May 2008) The
Contractor shall be required to perform the specified services at
the price(s) quoted in the Contract. All services shall be
performed within the time period(s) specified in the Contract. The
Contractor shall be compensated only for work performed to the
satisfaction of the Commonwealth. The Contractor shall not be
allowed or paid travel or per diem expenses except as specifically
set forth in the Contract.
V.20 CONTRACT-015.2 Billing Requirements (February 2012) Unless the
Contractor has been authorized by the Commonwealth for Evaluated
Receipt Settlement or Vendor Self-Invoicing, the Contractor shall
include in all of its invoices the following minimum
information:
- Vendor name and "Remit to" address, including SAP Vendor number;
- Bank routing information, if ACH; - SAP Purchase Order number; -
Delivery Address, including name of Commonwealth agency; -
Description of the supplies/services delivered in accordance with
SAP Purchase Order
(include purchase order line number if possible); - Quantity
provided; - Unit price; - Price extension; - Total price; and -
Delivery date of supplies or services.
If an invoice does not contain the minimum information set forth in
this paragraph, the Commonwealth may return the invoice as
improper. If the Commonwealth returns an invoice as improper, the
time for processing a payment will be suspended until the
Commonwealth receives a correct invoice. The Contractor may not
receive payment until the Commonwealth has received a correct
invoice. Contractors are required to establish separate billing
accounts with each using agency and invoice them directly. Each
invoice shall be itemized with adequate detail and match the line
item on the Purchase Order. In no instance shall any payment be
made for services to the Contractor that are not in accordance with
the prices on the Purchase Order, the Contract, updated price lists
or any discounts negotiated by the purchasing agency.
V.21 CONTRACT-016.1 Payment (Oct 2006)
a. The Commonwealth shall put forth reasonable efforts to make
payment by the required payment date. The required payment date is:
(a) the date on which payment is due under the terms of the
Contract; (b) thirty (30) days after a proper invoice actually is
received at the "Bill To" address if a date on which payment is due
is not specified in the Contract (a "proper" invoice is not
received until the Commonwealth accepts the service as
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satisfactorily performed); or (c) the payment date specified on the
invoice if later than the dates established by a) and (b) above.
Payment may be delayed if the payment amount on an invoice is not
based upon the price(s) as stated in the Contract. If any payment
is not made within fifteen (15) days after the required payment
date, the Commonwealth may pay interest as determined by the
Secretary of Budget in accordance with Act No. 266 of 1982 and
regulations promulgated pursuant thereto. Payment should not be
construed by the Contractor as acceptance of the service performed
by the Contractor. The Commonwealth reserves the right to conduct
further testing and inspection after payment, but within a
reasonable time after performance, and to reject the service if
such post payment testing or inspection discloses a defect or a
failure to meet specifications. The Contractor agrees that the
Commonwealth may set off the amount of any state tax liability or
other obligation of the Contractor or its subsidiaries to the
Commonwealth against any payments due the Contractor under any
contract with the Commonwealth.
b. The Commonwealth shall have the option of using the Commonwealth
purchasing card to
make purchases under the Contract or Purchase Order. The
Commonwealth's purchasing card is similar to a credit card in that
there will be a small fee which the Contractor will be required to
pay and the Contractor will receive payment directly from the card
issuer rather than the Commonwealth. Any and all fees related to
this type of payment are the responsibility of the Contractor. In
no case will the Commonwealth allow increases in prices to offset
credit card fees paid by the Contractor or any other charges
incurred by the Contractor, unless specifically stated in the terms
of the Contract or Purchase Order.
V.22 CONTRACT-016.2 Payment – Electronic Funds Transfer (February
2014)
a. The Commonwealth will make contract payments through the
Automated Clearing House (ACH). Within 10 days of award of the
contract or purchase order, the contractor must submit or must have
already submitted their ACH information within their user profile
in the Commonwealth's procurement system (SRM).
b. The contractor must submit a unique invoice number with each
invoice submitted. The
unique invoice number will be listed on the Commonwealth of
Pennsylvania's ACH remittance advice to enable the contractor to
properly apply the state agency's payment to the invoice
submitted.
c. It is the responsibility of the contractor to ensure that the
ACH information contained in
SRM is accurate and complete. Failure to maintain accurate and
complete information may result in delays in payments.
V.23 CONTRACT-017.1 Taxes (Dec 5 2006)
The Commonwealth is exempt from all excise taxes imposed by the
Internal Revenue Service and has accordingly registered with the
Internal Revenue Service to make tax free purchases under
Registration No. 23-23740001-K. With the exception of purchases of
the following items, no exemption certificates are required and
none will be issued: undyed diesel fuel, tires, trucks, gas guzzler
emergency vehicles, and sports fishing equipment. The Commonwealth
is also exempt from Pennsylvania state sales tax, local sales tax,
public transportation assistance taxes and fees and vehicle rental
tax. The Department of Revenue regulations provide that
exemption
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certificates are not required for sales made to governmental
entities and none will be issued. Nothing in this paragraph is
meant to exempt a construction contractor from the payment of any
of these taxes or fees which are required to be paid with respect
to the purchase, use, rental, or lease of tangible personal
property or taxable services used or transferred in connection with
the performance of a construction contract.
V.24 CONTRACT-018.1 Assignment of Antitrust Claims (Oct 2006) The
Contractor and the Commonwealth recognize that in actual economic
practice, overcharges by the Contractor's suppliers resulting from
violations of state or federal antitrust laws are in fact borne by
the Commonwealth. As part of the consideration for the award of the
Contract, and intending to be legally bound, the Contractor assigns
to the Commonwealth all right, title and interest in and to any
claims the Contractor now has, or may acquire, under state or
federal antitrust laws relating to the products and services which
are the subject of this Contract.
V.25 CONTRACT-019.1 Hold Harmless Provision (Nov 30 2006)
a. The Contractor shall hold the Commonwealth harmless from and
indemnify the Commonwealth against any and all third party claims,
demands and actions based upon or arising out of any activities
performed by the Contractor and its employees and agents under this
Contract, provided the Commonwealth gives Contractor prompt notice
of any such claim of which it learns. Pursuant to the Commonwealth
Attorneys Act (71 P.S. Section 732-101, et seq.), the Office of
Attorney General (OAG) has the sole authority to represent the
Commonwealth in actions brought against the Commonwealth. The OAG
may, however, in its sole discretion and under such terms as it
deems appropriate, delegate its right of defense. If OAG delegates
the defense to the Contractor, the Commonwealth will cooperate with
all reasonable requests of Contractor made in the defense of such
suits.
b. Notwithstanding the above, neither party shall enter into any
settlement without the other
party's written consent, which shall not be unreasonably withheld.
The Commonwealth may, in its sole discretion, allow the Contractor
to control the defense and any related settlement
negotiations.
V.26 CONTRACT-020.1 Audit Provisions (Oct 2006)
The Commonwealth shall have the right, at reasonable times and at a
site designated by the Commonwealth, to audit the books, documents
and records of the Contractor to the extent that the books,
documents and records relate to costs or pricing data for the
Contract. The Contractor agrees to maintain records which will
support the prices charged and costs incurred for the Contract. The
Contract shall preserve books, documents and records that relate to
costs or pricing data for the Contract for a period of three (3)
years from the date of final payment. The Contractor shall give
full and free access to all records to the Commonwealth and/or
their authorized representatives.
V.27 CONTRACT-021.1 Default (Oct 2013)
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a. The Commonwealth may, subject to the Force Majeure provisions of
this Contract, and in addition to its other rights under the
Contract, declare the Contractor in default by written notice
thereof to the Contractor, and terminate (as provided in the
Termination Provisions of this Contract) the whole or any part of
this Contract or any Purchase Order for any of the following
reasons:
1) Failure to begin work within the time specified in the Contract
or Purchase Order or as
otherwise specified; 2) Failure to perform the work with sufficient
labor, equipment, or material to ensure the
completion of the specified work in accordance with the Contract or
Purchase Order terms;
3) Unsatisfactory performance of work; 4) Failure to deliver the
awarded item(s) within the time specified in the Contract or
Purchase Order or as otherwise specified; 5) Improper delivery; 6)
Failure to provide an item(s) which is in conformance with the
specifications
referenced in the Contract or Purchase Order; 7) Delivery of a
defective item; 8) Failure or refusal to remove material, or remove
and replace any work rejected as
defective or unsatisfactory; 9) Discontinuance of work without
approval;
10) Failure to resume work, which has been discontinued, within a
reasonable time after notice to do so;
11) Insolvency or bankruptcy; 12) Assignment made for the benefit
of creditors; 13) Failure or refusal within 10 days after written
notice by the Contracting Officer, to
make payment or show cause why payment should not be made, of any
amounts due for materials furnished, labor supplied or performed,
for equipment rentals, or for utility services rendered;
14) Failure to protect, to repair, or to make good any damage or
injury to property; 15) Breach of any provision of the Contract;
16) Failure to comply with representations made in the Contractor's
bid/proposal; or
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17) Failure to comply with applicable industry standards, customs,
and practice.
b. In the event that the Commonwealth terminates this Contract or
any Purchase Order in
whole or in part as provided in Subparagraph a. above, the
Commonwealth may procure, upon such terms and in such manner as it
determines, items similar or identical to those so terminated, and
the Contractor shall be liable to the Commonwealth for any
reasonable excess costs for such similar or identical items
included within the terminated part of the Contract or Purchase
Order.
c. If the Contract or a Purchase Order is terminated as provided in
Subparagraph a. above, the
Commonwealth, in addition to any other rights provided in this
paragraph, may require the Contractor to transfer title and deliver
immediately to the Commonwealth in the manner and to the extent
directed by the Contracting Officer, such partially completed
items, including, where applicable, reports, working papers and
other documentation, as the Contractor has specifically produced or
specifically acquired for the performance of such part of the
Contract or Purchase Order as has been terminated. Except as
provided below, payment for completed work accepted by the
Commonwealth shall be at the Contract price. Except as provided
below, payment for partially completed items including, where
applicable, reports and working papers, delivered to and accepted
by the Commonwealth shall be in an amount agreed upon by the
Contractor and Contracting Officer. The Commonwealth may withhold
from amounts otherwise due the Contractor for such completed or
partially completed works, such sum as the Contracting Officer
determines to be necessary to protect the Commonwealth against
loss.
d. The rights and remedies of the Commonwealth provided in this
paragraph shall not be
exclusive and are in addition to any other rights and remedies
provided by law or under this Contract.
e. The Commonwealth's failure to exercise any rights or remedies
provided in this paragraph
shall not be construed to be a waiver by the Commonwealth of its
rights and remedies in regard to the event of default or any
succeeding event of default.
f. Following exhaustion of the Contractor's administrative remedies
as set forth in the
Contract Controversies Provision of the Contract, the Contractor's
exclusive remedy shall be to seek damages in the Board of
Claims.
V.28 CONTRACT-022.1 Force Majeure (Oct 2006)
Neither party will incur any liability to the other if its
performance of any obligation under this Contract is prevented or
delayed by causes beyond its control and without the fault or
negligence of either party. Causes beyond a party's control may
include, but aren't limited to, acts of God or war, changes in
controlling law, regulations, orders or the requirements of any
governmental entity, severe weather conditions, civil disorders,
natural disasters, fire, epidemics and quarantines, general strikes
throughout the trade, and freight embargoes. The Contractor shall
notify the Commonwealth orally within five (5) days and in writing
within ten (10) days of the date on which the Contractor becomes
aware, or should have reasonably become aware, that such cause
would prevent or delay its performance. Such notification shall (i)
describe fully such cause(s) and its effect on performance, (ii)
state whether performance under
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the contract is prevented or delayed and (iii) if performance is
delayed, state a reasonable estimate of the duration of the delay.
The Contractor shall have the burden of proving that such cause(s)
delayed or prevented its performance despite its diligent efforts
to perform and shall produce such supporting documentation as the
Commonwealth may reasonably request. After receipt of such
notification, the Commonwealth may elect to cancel the Contract,
cancel the Purchase Order, or to extend the time for performance as
reasonably necessary to compensate for the Contractor's delay. In
the event of a declared emergency by competent governmental
authorities, the Commonwealth by notice to the Contractor, may
suspend all or a portion of the Contract or Purchase Order.
V.29 CONTRACT-023.1a Termination Provisions (Oct 2013) The
Commonwealth has the right to terminate this Contract or any
Purchase Order for any of the following reasons. Termination shall
be effective upon written notice to the Contractor.
a. TERMINATION FOR CONVENIENCE: The Commonwealth shall have the
right to terminate the Contract or a Purchase Order for its
convenience if the Commonwealth determines termination to be in its
best interest. The Contractor shall be paid for work satisfactorily
completed prior to the effective date of the termination, but in no
event shall the Contractor be entitled to recover loss of
profits.
b. NON-APPROPRIATION: The Commonwealth's obligation to make
payments during any
Commonwealth fiscal year succeeding the current fiscal year shall
be subject to availability and appropriation of funds. When funds
(state and/or federal) are not appropriated or otherwise made
available to support continuation of performance in a subsequent
fiscal year period, the Commonwealth shall have the right to
terminate the Contract or a Purchase Order. The Contractor shall be
reimbursed for the reasonable value of any nonrecurring costs
incurred but not amortized in the price of the supplies or services
delivered under the Contract. Such reimbursement shall not include
loss of profit, loss of use of money, or administrative or overhead
costs. The reimbursement amount may be paid from any appropriations
available for that purpose.
c. TERMINATION FOR CAUSE: The Commonwealth shall have the right to
terminate the
Contract or a Purchase Order for Contractor default under the
Default Clause upon written notice to the Contractor. The
Commonwealth shall also have the right, upon written notice to the
Contractor, to terminate the Contract or a Purchase Order for other
cause as specified in the Contract or by law. If it is later
determined that the Commonwealth erred in terminating the Contract
or a Purchase Order for cause, then, at the Commonwealth's
discretion, the Contract or Purchase Order shall be deemed to have
been terminated for convenience under the Subparagraph a.
V.30 CONTRACT-024.1 Contract Controversies (Oct 2011)
a. In the event of a controversy or claim arising from the
Contract, the Contractor must,
within six months after the cause of action accrues, file a written
claim with the contracting officer for a determination. The claim
shall state all grounds upon which the Contractor asserts a
controversy exists. If the Contractor fails to file a claim or
files an untimely claim, the Contractor is deemed to have waived
its right to assert a claim in any forum. At the
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time the claim is filed, or within sixty (60) days thereafter,
either party may request mediation through the Commonwealth Office
of General Counsel Dispute Resolution Program.
b. If the Contractor or the contracting officer requests mediation
and the other party agrees,
the contracting officer shall promptly make arrangements for
mediation. Mediation shall be scheduled so as to not delay the
issuance of the final determination beyond the required 120 days
after receipt of the claim if mediation is unsuccessful. If
mediation is not agreed to or if resolution is not reached through
mediation, the contracting officer shall review timely-filed claims
and issue a final determination, in writing, regarding the claim.
The final determination shall be issued within 120 days of the
receipt of the claim, unless extended by consent of the contracting
officer and the Contractor. The contracting officer shall send
his/her written determination to the Contractor. If the contracting
officer fails to issue a final determination within the 120 days
(unless extended by consent of the parties), the claim shall be
deemed denied. The contracting officer's determination shall be the
final order of the purchasing agency.
c. Within fifteen (15) days of the mailing date of the
determination denying a claim or within
135 days of filing a claim if, no extension is agreed to by the
parties, whichever occurs first, the Contractor may file a
statement of claim with the Commonwealth Board of Claims. Pending a
final judicial resolution of a controversy or claim, the Contractor
shall proceed diligently with the performance of the Contract in a
manner consistent with the determination of the contracting officer
and the Commonwealth shall compensate the Contractor pursuant to
the terms of the Contract.
V.31 CONTRACT-025.1 Assignability and Subcontracting (Oct
2013)
a. Subject to the terms and conditions of this paragraph, this
Contract shall be binding upon
the parties and their respective successors and assigns. b. The
Contractor shall not subcontract with any person or entity to
perform all or any part of
the work to be performed under this Contract without the prior
written consent of the Contracting Officer, which consent may be
withheld at the sole and absolute discretion of the Contracting
Officer.
c. The Contractor may not assign, in whole or in part, this
Contract or its rights, duties,
obligations, or responsibilities hereunder without the prior
written consent of the Contracting Officer, which consent may be
withheld at the sole and absolute discretion of the Contracting
Officer.
d. Notwithstanding the foregoing, the Contractor may, without the
consent of the Contracting
Officer, assign its rights to payment to be received under the
Contract, provided that the Contractor provides written notice of
such assignment to the Contracting Officer together with a written
acknowledgement from the assignee that any such payments are
subject to all of the terms and conditions of this Contract.
e. For the purposes of this Contract, the term "assign" shall
include, but shall not be limited
to, the sale, gift, assignment, pledge, or other transfer of any
ownership interest in the
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Contractor provided, however, that the term shall not apply to the
sale or other transfer of stock of a publicly traded company.
f. Any assignment consented to by the Contracting Officer shall be
evidenced by a written
assignment agreement executed by the Contractor and its assignee in
which the assignee agrees to be legally bound by all of the terms
and conditions of the Contract and to assume the duties,
obligations, and responsibilities being assigned.
g. A change of name by the Contractor, following which the
Contractor's federal
identification number remains unchanged, shall not be considered to
be an assignment hereunder. The Contractor shall give the
Contracting Officer written notice of any such change of
name.
V.32 CONTRACT-026.1 Other Contractors (Oct 2006)
The Commonwealth may undertake or award other contracts for
additional or related work, and the Contractor shall fully
cooperate with other contractors and Commonwealth employees, and
coordinate its work with such additional work as may be required.
The Contractor shall not commit or permit any act that will
interfere with the performance of work by any other contractor or
by Commonwealth employees. This paragraph shall be included in the
Contracts of all contractors with which this Contractor will be
required to cooperate. The Commonwealth shall equitably enforce
this paragraph as to all contractors to prevent the imposition of
unreasonable burdens on any contractor.
V.33 CONTRACT-027.1 Nondiscrimination/Sexual Harassment Clause
(August 2018) The Contractor agrees:
1. In the hiring of any employee(s) for the manufacture of
supplies, performance of work, or any other activity required under
the contract or any subcontract, the Contractor, each
subcontractor, or any person acting on behalf of the Contractor or
subcontractor shall not discriminate by reason of race, gender,
creed, color, sexual orientation, gender identity or expression, or
in violation of the Pennsylvania Human Relations Act (PHRA) and
applicable federal laws, against any citizen of this Commonwealth
who is qualified and available to perform the work to which the
employment relates.
2. Neither the Contractor nor any subcontractor nor any person on
their behalf shall in any
manner discriminate by reason of race, gender, creed, color, sexual
orientation, gender identity or expression, or in violation of the
PHRA and applicable federal laws, against or intimidate any
employee involved in the manufacture of supplies, the performance
of work, or any other activity required under the contract.
3. Neither the Contractor nor any subcontractor nor any person on
their behalf shall in any
manner discriminate by reason of race, gender, creed, color, sexual
orientation, gender identity or expression, or in violation of the
PHRA and applicable federal laws, in the provision of services
under the contract.
4. Neither the Contractor nor any subcontractor nor any person on
their behalf shall in any
manner discriminate against employees by reason of participation in
or decision to refrain from participating in labor activities
protected under the Public Employee Relations Act, Pennsylvania
Labor Relations Act or National Labor Relations Act, as applicable
and to the extent determined by entities charged with such
Acts’
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enforcement, and shall comply with any provision of law
establishing organizations as employees’ exclusive
representatives.
5. The Contractor and each subcontractor shall establish and
maintain a written
nondiscrimination and sexual harassment policy and shall inform
their employees in writing of the policy. The policy must contain a
provision that sexual harassment will not be tolerated and
employees who practice it will be disciplined. Posting this
Nondiscrimination/Sexual Harassment Clause conspicuously in easily
accessible and well-lighted places customarily frequented by
employees and at or near where the contracted services are
performed shall satisfy this requirement for employees with an
established work site.
6. The Contractor and each subcontractor shall not discriminate by
reason of race, gender,
creed, color, sexual orientation, gender identity or expression, or
in violation of PHRA and applicable federal laws, against any
subcontractor or supplier who is qualified to perform the work to
which the contract relates.
7. The Contractor and each subcontractor represent that it is
presently in compliance with
and will maintain compliance with all applicable federal, state,
and local laws, regulations and policies relating to
nondiscrimination and sexual harassment. The Contractor and each
subcontractor further represents that it has filed a Standard Form
100 Employer Information Report (“EEO-1”) with the U.S. Equal
Employment Opportunity Commission (“EEOC”) and shall file an annual
EEO-1 report with the EEOC as required for employers’ subject to
Title VII of the Civil Rights Act of 1964, as amended, that have
100 or more employees and employers that have federal government
contracts or first-tier subcontracts and have 50 or more employees.
The Contractor and each subcontractor shall, upon request and
within the time periods requested by the Commonwealth, furnish all
necessary employment documents and records, including EEO-1
reports, and permit access to their books, records, and accounts by
the contracting agency and the Bureau of Diversity, Inclusion and
Small Business Opportunities for purpose of ascertaining compliance
with provisions of this Nondiscrimination/Sexual Harassment
Clause.
8. The Contractor shall include the provisions of this
Nondiscrimination/Sexual
Harassment Clause in every subcontract so that those provisions
applicable to subcontractors will be binding upon each
subcontractor.
9. The Contractor’s and each subcontractor’s obligations pursuant
to these provisions are
ongoing from and after the effective date of the contract through
the termination date thereof. Accordingly, the Contractor and each
subcontractor shall have an obligation to inform the Commonwealth
if, at any time during the term of the contract, it becomes aware
of any actions or occurrences that would result in violation of
these provisions.
10. The Commonwealth may cancel or terminate the contract and all
money due or to
become due under the contract may be forfeited for a violation of
the terms and conditions of this Nondiscrimination/Sexual
Harassment Clause. In addition, the agency may proceed with
debarment or suspension and may place the Contractor in the
Contractor Responsibility File.
V.34 CONTRACT-028.1 Contractor Integrity Provisions (Jan
2015)
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It is essential that those who seek to contract with the
Commonwealth of Pennsylvania (“Commonwealth”) observe high
standards of honesty and integrity. They must conduct themselves in
a manner that fosters public confidence in the integrity of the
Commonwealth contracting and procurement process.
1. DEFINITIONS. For purposes of these Contractor Integrity
Provisions, the following terms shall have the meanings found in
this Section:
a. "Affiliate" means two or more entities where (a) a parent entity
owns more than fifty
percent of the voting stock of each of the entities; or (b) a
common shareholder or group of shareholders owns more than fifty
percent of the voting stock of each of the entities; or (c) the
entities have a common proprietor or general partner.
b. "Consent" means written permission signed by a duly authorized
officer or employee
of the Commonwealth, provided that where the material facts have
been disclosed, in writing, by prequalification, bid, proposal, or
contractual terms, the Commonwealth shall be deemed to have
consented by virtue of the execution of this contract.
c. "Contractor" means the individual or entity that has entered
into this contract with the
Commonwealth. d. "Contractor Related Parties" means any affiliates
of the Contractor and the
Contractor's executive officers, Pennsylvania officers and
directors, or owners of 5 percent or more interest in the
Contractor.
e. "Financial Interest" means either:
(1) Ownership of more than a five percent interest in any business;
or (2) Holding a position as an officer, director, trustee,
partner, employee, or holding
any position of management.
f. "Gratuity" means tendering, giving, or providing anything of
more than nominal monetary value including, but not limited to,
cash, travel, entertainment, gifts, meals, lodging, loans,
subscriptions, advances, deposits of money, services, employment,
or contracts of any kind. The exceptions set forth in the
Governor’s Code of Conduct, Executive Order 1980-18, the 4 Pa. Code
§7.153(b), shall apply.
g. "Non-bid Basis" means a contract awarded or executed by the
Commonwealth with
Contractor without seeking bids or proposals from any other
potential bidder, Respondent or offeror.
2. In furtherance of this policy, Contractor agrees to the
following:
a. Contractor shall maintain the highest standards of honesty and
integrity during the
performance of this contract and shall take no action in violation
of state or federal laws or regulations or any other applicable
laws or regulations, or other requirements applicable to Contractor
or that govern contracting or procurement with the
Page 17 of 28
Commonwealth. b. Contractor shall establish and implement a written
business integrity policy, which
includes, at a minimum, the requirements of these provisions as
they relate to the Contractor activity with the Commonwealth and
Commonwealth employees and which is made known to all Contractor
employees. Posting these Contractor Integrity Provisions
conspicuously in easily-accessible and well-lighted places
customarily frequented by employees and at or near where the
contract services are performed shall satisfy this
requirement.
c. Contractor, its affiliates, agents, employees and anyone in
privity with Contractor shall
not accept, agree to give, offer, confer or agree to confer or
promise to confer, directly or indirectly, any gratuity or
pecuniary benefit to any person, or to influence or attempt to
influence any person in violation of any federal or state law,
regulation, executive order of the Governor of Pennsylvania,
statement of policy, management directive or any other published
standard of the Commonwealth in connection with performance of work
under this contract, except as provided in this contract.
d. Contractor shall not have a financial interest in any other
contractor, subcontractor, or
supplier providing services, labor or material under this contract,
unless the financial interest is disclosed to the Commonwealth in
writing and the Commonwealth consents to Contractor's financial
interest prior to Commonwealth execution of the contract.
Contractor shall disclose the financial interest to the
Commonwealth at the time of bid or proposal submission, or if no
bids or proposals are solicited, no later than the Contractor's
submission of the contract signed by Contractor.
e. Contractor certifies to the best of its knowledge and belief
that within the last five (5)
years Contractor or Contractor Related Parties have not:
(1) been indicted or convicted of a crime involving moral turpitude
or business honesty or integrity in any jurisdiction;
(2) been suspended, debarred or otherwise disqualified from
entering into any
contract with any governmental agency; (3) had any business license
or professional license suspended or revoked; (4) had any sanction
or finding of fact imposed as a result of a judicial or
administrative proceeding related to fraud, extortion, bribery, bid
rigging, embezzlement, misrepresentation or anti-trust; and
(5) been, and is not currently, the subject of a criminal
investigation by any federal,
state or local prosecuting or investigative agency and/or civil
anti-trust investigation by any federal, state or local prosecuting
or investigative agency.
If Contractor cannot so certify to the above, then it must submit
along with its bid, proposal or contract a written explanation of
why such certification cannot be made and the Commonwealth will
determine whether a contract may be entered into with
Page 18 of 28
the Contractor. The Contractor's obligation pursuant to this
certification is ongoing from and after the effective date of the
contract through the termination date thereof. Accordingly, the
Contractor shall have an obligation to immediately notify the
Commonwealth in writing if at any time during the term of the
contract it becomes aware of any event which would cause the
Contractor's certification or explanation to change. Contractor
acknowledges that the Commonwealth may, in its sole discretion,
terminate the contract for cause if it learns that any of the
certifications made herein are currently false due to intervening
factual circumstances or were false or should have been known to be
false when entering into the contract.
f. Contractor shall comply with the requirements of the Lobbying
Disclosure Act (65
Pa.C.S. §13A01 et seq.) regardless of the method of award. If this
contract was awarded on a Non-bid Basis, Contractor must also
comply with the requirements of the Section 1641 of the
Pennsylvania Election Code (25 P.S. §3260a).
g. When contractor has reason to believe that any breach of ethical
standards as set forth
in law, the Governor's Code of Conduct, or these Contractor
Integrity Provisions has occurred or may occur, including but not
limited to contact by a Commonwealth officer or employee which, if
acted upon, would violate such ethical standards, Contractor shall
immediately notify the Commonwealth contracting officer or the
Office of the State Inspector General in writing.
h. Contractor, by submission of its bid or proposal and/or
execution of this contract and
by the submission of any bills, invoices or requests for payment
pursuant to the contract, certifies and represents that is has not
violated any of these Contractor Integrity Provisions in connection
with the submission of the bid or proposal, during any contract
negotiations or during the term of the contract, to include any
extensions thereof. Contractor shall immediately notify the
Commonwealth in writing of any actions for occurrences that would
result in a violation of these Contractor Integrity Provisions.
Contractor agrees to reimburse the Commonwealth for the reasonable
costs of investigation incurred by the Office of the State
Inspector General for investigations of the Contractor's compliance
with the terms of this or any other agreement between the
Contractor and the Commonwealth that results in the suspension or
debarment of the Contractor. Contractor shall not be responsible
for investigative costs for investigations that do not result in
the Contractor's suspension or debarment.
i. Contractor shall cooperate with the Office of the State
Inspector General in its
investigation of any alleged Commonwealth agency or employee breach
of ethical standards and any alleged Contractor non-compliance with
these Contractor Integrity Provisions. Contractor agrees to make
identified Contractor employees available for interviews at
reasonable times and places. Contractor, upon the inquiry or
request of an Inspector General, shall provide, or if appropriate,
make promptly available for inspection or copying, any information
of any type or form deemed relevant by the Office of the State
Inspector General to Contractor's integrity and compliance with
these provisions. Such information may include, but shall not be
limited to, Contractor's business or financial records, documents
or files of any type or form that refer to or concern this
contract. Contractor shall incorporate this paragraph in any
agreement, contract or subcontract it enters into in the course of
the performance of this
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contract/agreement solely for the purpose of obtaining
subcontractor compliance with this provision. The incorporation of
this provision in a subcontract shall not create privity of
contract between the Commonwealth and any such subcontractor, and
no third party beneficiaries shall be created thereby.
j. For violation of any of these Contractor Integrity Provisions,
the Commonwealth may
terminate this and any other contract with Contractor, claim
liquidated damages in an amount equal to the value of anything
received in breach of these Provisions, claim damages for all
additional costs and expenses incurred in obtaining another
contractor to complete performance under this contract, and debar
and suspend Contractor from doing business with the Commonwealth.
These rights and remedies are cumulative, and the use or non-use of
any one shall not preclude the use of all or any other. These
rights and remedies are in addition to those the Commonwealth may
have under law, statute, regulation or otherwise.
k. Contractor, by submission of its bid or proposal and/or
execution of this contract and
by the submission of any bills, invoices or requests for payment
pursuant to the contract, certifies and represents that is has not
violated any of these Contractor Integrity Provisions in connection
with the submission of the bid or proposal, during any contract
negotiations or during the term of the contract, to include any
extensions thereof. Contractor shall immediately notify the
Commonwealth in writing of any actions for occurrences that would
result in a violation of these Contractor Integrity Provisions.
Contractor agrees to reimburse the Commonwealth for the reasonable
costs of investigation incurred by the Office of the State
Inspector General for investigations of the Contractor's compliance
with the terms of this or any other agreement between the
Contractor and the Commonwealth that results in the suspension or
debarment of the Contractor. Contractor shall not be responsible
for investigative costs for investigations that do not result in
the Contractor's suspension or debarment.
l. Contractor shall cooperate with the Office of the State
Inspector General in its
investigation of any alleged Commonwealth agency or employee breach
of ethical standards and any alleged Contractor non-compliance with
these Contractor Integrity Provisions. Contractor agrees to make
identified Contractor employees available for interviews at
reasonable times and places. Contractor, upon the inquiry or
request of an Inspector General, shall provide, or if appropriate,
make promptly available for inspection or copying, any information
of any type or form deemed relevant by the Office of the State
Inspector General to Contractor's integrity and compliance with
these provisions. Such information may include, but shall not be
limited to, Contractor's business or financial records, documents
or files of any type or form that refer to or concern this
contract. Contractor shall incorporate this paragraph in any
agreement, contract or subcontract it enters into in the course of
the performance of this contract/agreement solely for the purpose
of obtaining subcontractor compliance with this provision. The
incorporation of this provision in a subcontract shall not create
privity of contract between the Commonwealth and any such
subcontractor, and no third party beneficiaries shall be created
thereby.
m. For violation of any of these Contractor Integrity Provisions,
the Commonwealth
may terminate this and any other contract with Contractor, claim
liquidated damages in
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an amount equal to the value of anything received in breach of
these Provisions, claim damages for all additional costs and
expenses incurred in obtaining another contractor to complete
performance under this contract, and debar and suspend Contractor
from doing business with the Commonwealth. These rights and
remedies are cumulative, and the use or non-use of any one shall
not preclude the use of all or any other. These rights and remedies
are in addition to those the Commonwealth may have under law,
statute, regulation or otherwise.
V.35 CONTRACT-029.1 Contractor Responsibility Provisions (Nov
2010)
For the purpose of these provisions, the term contractor is defined
as any person, including, but not limited to, a bidder, offeror,
respondent, loan recipient, grantee or lessor, who has furnished or
performed or seeks to furnish or perform, goods, supplies,
services, leased space, construction or other activity, under a
contract, grant, lease, purchase order or reimbursement agreement
with the Commonwealth of Pennsylvania (Commonwealth). The term
contractor includes a permittee, licensee, or any agency, political
subdivision, instrumentality, public authority, or other public
entity in the Commonwealth.
1. The Contractor certifies, in writing, for itself and its
subcontractors required to be disclosed
or approved by the Commonwealth, that as of the date of its
execution of this Bid/Contract, that neither the Contractor, nor
any such subcontractors, are under suspension or debarment by the
Commonwealth or any governmental entity, instrumentality, or
authority and, if the Contractor cannot so certify, then it agrees
to submit, along with its Bid/Contract, a written explanation of
why such certification cannot be made.
2. The Contractor also certifies, in writing, that as of the date
of its execution of this
Bid/Contract it has no tax liabilities or other Commonwealth
obligations, or has filed a timely administrative or judicial
appeal if such liabilities or obligations exist, or is subject to a
duly approved deferred payment plan if such liabilities
exist.
3. The Contractor's obligations pursuant to these provisions are
ongoing from and after the
effective date of the Contract through the termination date
thereof. Accordingly, the Contractor shall have an obligation to
inform the Commonwealth if, at any time during the term of the
Contract, it becomes delinquent in the payment of taxes, or other
Commonwealth obligations, or if it or, to the best knowledge of the
Contractor, any of its subcontractors are suspended or debarred by
the Commonwealth, the federal government, or any other state or
governmental entity. Such notification shall be made within 15 days
of the date of suspension or debarment.
4. The failure of the Contractor to notify the Commonwealth of its
suspension or debarment
by the Commonwealth, any other state, or the federal government
shall constitute an event of default of the Contract with the
Commonwealth.
5. The Contractor agrees to reimburse the Commonwealth for the
reasonable costs of
investigation incurred by the Office of State Inspector General for
investigations of the Contractor's compliance with the terms of
this or any other agreement between the Contractor and the
Commonwealth that results in the suspension or debarment of the
contractor. Such costs shall include, but shall not be limited to,
salaries of investigators,
Page 21 of 28
including overtime; travel and lodging expenses; and expert witness
and documentary fees. The Contractor shall not be responsible for
investigative costs for investigations that do not result in the
Contractor's suspension or debarment.
6. The Contractor may obtain a current list of suspended and
debarred Commonwealth
contractors by either searching the Internet at
http://www.dgs.state.pa.us/ or contacting the:
Department of General Services Office of Chief Counsel 603 North
Office Building Harrisburg, PA 17125 Telephone No: (717) 783-6472
FAX No: (717) 787-9138
V.36 CONTRACT-030.1 Americans with Disabilities Act (April 1,
2010)
a. Pursuant to federal regulations promulgated under the authority
of The Americans With
Disabilities Act, 28 C.F.R. Section 35.101 et seq., the Contractor
understands and agrees that it shall not cause any individual with
a disability to be excluded from participation in this Contract or
from activities provided for under this Contract on the basis of
the disability. As a condition of accepting this contract, the
Contractor agrees to comply with the "General Prohibitions Against
Discrimination," 28 C.F.R. Section 35.130, and all other
regulations promulgated under Title II of The Americans With
Disabilities Act which are applicable to all benefits, services,
programs, and activities provided by the Commonwealth of
Pennsylvania through contracts with outside contractors.
b. The Contractor shall be responsible for and agrees to indemnify
and hold harmless the
Commonwealth of Pennsylvania from all losses, damages, expenses,
claims, demands, suits, and actions brought by any party against
the Commonwealth of Pennsylvania as a result of the Contractor’s
failure to comply with the provisions of Subparagraph a
above.
V.37 CONTRACT-032.1 Covenant Against Contingent Fees (Oct
2006)
The Contractor warrants that no person or selling agency has been
employed or retained to solicit or secure the Contract upon an
agreement or understanding for a commission, percentage, brokerage,
or contingent fee, except bona fide employees or bona fide
established commercial or selling agencies maintained by the
Contractor for the purpose of securing business. For breach or
violation of this warranty, the Commonwealth shall have the right
to terminate the Contract without liability or in its discretion to
deduct from the Contract price or consideration, or otherwise
recover the full amount of such commission, percentage, brokerage,
or contingent fee.
V.38 CONTRACT-033.1 Applicable Law (Oct 2006) This Contract shall
be governed by and interpreted and enforced in accordance with the
laws of the Commonwealth of Pennsylvania (without regard to any
conflict of laws provisions) and the decisions of the Pennsylvania
courts. The Contractor consents to the jurisdiction of any court of
the Commonwealth of Pennsylvania and any federal courts in
Pennsylvania, waiving any claim or defense that such forum is not
convenient or proper. The Contractor agrees that any such court
shall have in personam
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jurisdiction over it, and consents to service of process in any
manner authorized by Pennsylvania law.
V.39 CONTRACT-034.1a Integration – RFP (Dec 12 2006) This Contract,
including the Request for Proposals, Contractor's Proposal,
Contractor's Best and Final Offer, if any, all referenced
documents, and any Purchase Order constitutes the entire agreement
between the parties. No agent, representative, employee or officer
of either the Commonwealth or the Contractor has authority to make,
or has made, any statement, agreement or representation, oral or
written, in connection with the Contract, which in any way can be
deemed to modify, add to or detract from, or otherwise change or
alter its terms and conditions. No negotiations between the
parties, nor any custom or usage, shall be permitted to modify or
contradict any of the terms and conditions of the Contract. No
modifications, alterations, changes, or waiver to the Contract or
any of its terms shall be valid or binding unless accomplished by a
written amendment signed by both parties.
V.40 CONTRACT-034.2a Order of Precedence - RFP (Dec 12 2006) In the
event there is a conflict among the documents comprising this
Contract, the Commonwealth and the Contractor agree on the
following order of precedence: the Contract; the RFP, the Best and
Final Offer, if any; the Contractor's Proposal in Response to the
RFP.
V.41 CONTRACT-034.3 Controlling Terms and Conditions (Aug 2011) The
terms and conditions of this Contract shall be the exclusive terms
of agreement between the Contractor and the Commonwealth. All
quotations requested and received from the Contractor are for
obtaining firm pricing only. Other terms and conditions or
additional terms and conditions included or referenced in the
Contractor's quotations, invoices, business forms, or other
documentation shall not become part of the parties' agreement and
shall be disregarded by the parties, unenforceable by the
Contractor and not binding on the Commonwealth.
V.42 CONTRACT-035.1a Changes (Oct 2006) The Commonwealth reserves
the right to make changes at any time during the term of the
Contract or any renewals or extensions thereof: 1) to increase or
decrease the quantities resulting from variations between any
estimated quantities in the Contract and actual quantities; 2) to
make changes to the services within the scope of the Contract; 3)
to notify the Contractor that the Commonwealth is exercising any
Contract renewal or extension option; or 4) to modify the time of
performance that does not alter the scope of the Contract to extend
the completion date beyond the Expiration Date of the Contract or
any renewals or extensions thereof. Any such change shall be made
by the Contracting Officer by notifying the Contractor in writing.
The change shall be effective as of the date of the change, unless
the notification of change specifies a later effective date. Such
increases, decreases, changes, or modifications will not invalidate
the Contract, nor, if performance security is being furnished in
conjunction with the Contract, release the security obligation. The
Contractor agrees to provide the service in accordance with the
change order. Any dispute by the Contractor in
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regard to the performance required by any notification of change
shall be handled through Contract Controversies Provision.
V.43 CONTRACT-036.1 Background Checks (February 2016)
a. The Contractor must, at its expense, arrange for a background
check for each of its employees, as well as the employees of any of
its subcontractors, who will have access to Commonwealth
facilities, either through on-site access or through remote access.
Background checks are to be conducted via the Request for Criminal
Record Check form and procedure found at
http://www.psp.state.pa.us/psp/lib/psp/sp4-164.pdf . The background
check must be conducted prior to initial access and on an annual
basis thereafter.
b. Before the Commonwealth will permit access to the Contractor,
the Contractor must
provide written confirmation that the background checks have been
conducted. If, at any time, it is discovered that a Contractor
employee has a criminal record that includes a felony or
misdemeanor involving terroristic behavior, violence, use of a
lethal weapon, or breach of trust/fiduciary responsibility or which
raises concerns about building, system or personal security or is
otherwise job-related, the Contractor shall not assign that
employee to any Commonwealth facilities, shall remove any access
privileges already given to the employee and shall not permit that
employee remote access unless the Commonwealth consents to the
access, in writing, prior to the access. The Commonwealth may
withhold its consent in its sole discretion. Failure of the
Contractor to comply with the terms of this Section on more than
one occasion or Contractor's failure to appropriately address any
single failure to the satisfaction of the Commonwealth may result
in the Contractor being deemed in default of its Contract.
c. The Commonwealth specifically reserves the right of the
Commonwealth to conduct
background checks over and above that described herein. d. Access
to certain Capitol Complex buildings and other state office
buildings is controlled
by means of card readers and secured visitors' entrances.
Commonwealth contracted personnel who have regular and routine
business in Commonwealth worksites may be issued a photo
identification or access badge subject to the requirements of the
contracting agency and DGS set forth in Enclosure 3 of Commonwealth
Management Directive 625.10 (Amended) Card Reader and Emergency
Response Access to Certain Capitol Complex Buildings and Other
State Office Buildings. The requirements, policy and procedures
include a processing fee payable by the Contractor for contracted
personnel photo identification or access badges.
e. The Commonwealth specifically reserves the right of the
Commonwealth to conduct
background checks over and above that described herein. f. Access
to certain Capitol Complex buildings and other state office
buildings is controlled
by means of card readers and secured visitors' entrances.
Commonwealth contracted personnel who have regular and routine
business in Commonwealth worksites may be issued a photo
identification or access badge subject to the requirements of the
contracting agency and DGS set forth in Enclosure 3 of Commonwealth
Management Directive 625.10
(Amended) Card Reader and Emergency Response Access to Certain
Capitol Complex Buildings and Other State Office Buildings. The
requirements, policy and procedures include a processing fee
payable by the Contractor for contracted personnel photo
identification or access badges.
V.44 CONTRACT-037.1a Confidentiality (Oct 2013)
a) The Contractor agrees to protect the confidentiality of the
Commonwealth’s confidential
information. The Commonwealth agrees to protect the confidentiality
of Contractor’s confidential information. In order for information
to be deemed confidential, the party claiming confidentiality must
designate the information as “confidential” in such a way as to
give notice to the other party (notice may be communicated by
describing the information, and the specifications around its use
or disclosure, in the SOW). Neither party may assert that
information owned by the other party is such party’s confidential
information. The parties agree that such confidential information
shall not be copied, in whole or in part, or used or disclosed
except when essential for authorized activities under this Contract
and, in the case of disclosure, where the recipient of the
confidential information has agreed to be bound by confidentiality
requirements no less restrictive than those set forth herein. Each
copy of such confidential information shall be marked by the party
making the copy with any notices appearing in the original. Upon
termination or cancellation of this Contract or any license granted
hereunder, the receiving party will return to the disclosing party
all copies of the confidential information in the receiving party’s
possession, other than one copy, which may be maintained for
archival purposes only, and which will remain subject to this
Contract’s security, privacy, data retention/destruction and
confidentiality provisions (all of which shall survive the
expiration of this Contract). Both parties agree that a material
breach of these requirements may, after failure to cure within the
time frame specified in this Contract, and at the discretion of the
non-breaching party, result in termination for default pursuant to
the DEFAULT provision of this Contract, in addition to other
remedies available to the non-breaching party.
b) Insofar as information is not otherwise protected by law or
regulation, the obligations stated in this Section do not apply to
information:
(1) already known to the recipient at the time of disclosure other
than through the
contractual relationship; (2) independently generated by the
recipient and not derived by the information supplied
by the disclosing party. (3) known or available to the public ,
except where such knowledge or availability is the
result of unauthorized disclosure by the recipient of the
proprietary information; (4) disclosed to the recipient without a
similar restriction by a third party who has the
right to make such disclosure; or (5) required to be disclosed by
law, regulation, court order, or other legal process.
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There shall be no restriction with respect to the use or disclosure
of any ideas, concepts, know-how, or data processing techniques
developed alone or jointly with the Commonwealth in connection with
services provided to the Commonwealth under this Contract.
c) The Contractor shall use the following process when submitting
information to the
Commonwealth it believes to be confidential and/or proprietary
information or trade secrets:
(1) Prepare an un-redacted version of the appropriate document, and
(2) Prepare a redacted version of the document that redacts the
information that is
asserted to be confidential or proprietary information or a trade
secret, and (3) Prepare a signed written statement that
states:
(i) the attached document contains confidential or proprietary
information or trade
secrets; (ii) the Contractor is submitting the document in both
redacted and un-redacted
format in accordance with 65 P.S. § 67.707(b); and (iii) the
Contractor is requesting that the document be considered exempt
under 65
P.S. § 67.708(b)(11) from public records requests.
(iv) Submit the two documents along with the signed written
statement to the Commonwealth.
V.45 CONTRACT-037.2a Sensitive Information (Sept 2009)
The Contractor shall not publish or otherwise disclose, except to
the Commonwealth and except matters of public record, any
information or data obtained hereunder from private individuals,
organizations, or public agencies, in a publication whereby the
information or data furnished by or about any particular person or
establishment can be identified, except with the consent of such
person or establishment. The parties shall not use or disclose any
information about a recipient receiving services from, or otherwise
enrolled in, a Commonwealth program affected by or benefiting from
services under this Contract for any purpose not connected with the
parties' Contract responsibilities except with the written consent
of such recipient, recipient's attorney, or recipient's parent or
guardian pursuant to applicable state and federal law and
regulations. Contractor will be responsible to remediate any
improper disclosure of information. Such remediation may include,
but not be limited to, credit monitoring for individuals for whom
information has been released and reimbursement of any costs
incurred by individuals for whom information has been released.
Costs for which Contractor is responsible under this paragraph are
not subject to any limitation of liability set out in this Contract
or Purchase Order.
Page 26 of 28
Compliance (Sept 2009) Contractor is required to comply with the
Health Insurance Portability and Accountability Act (HIPAA)
Compliance requirements as set forth in the Act.
V.47 CONTRACT-051.1 Notice (Dec 2006) Any written notice to any
party under this Contract shall be deemed sufficient if delivered
personally, or by facsimile, telecopy, electronic or digital
transmission (provided such delivery is confirmed), or by a
recognized overnight courier service (e.g., DHL, Federal Express,
etc.) with confirmed receipt, or by certified or registered United
States mail, postage prepaid, return receipt requested, and sent to
following:
a. If to the Contractor: the Contractor's address as recorded in
the Commonwealth's Supplier Registration system.
b. If to the Commonwealth: the address of the Issuing Office as set
forth on the Contract.
V.48 CONTRACT-052.1 Right to Know Law (Feb 2010)
a. The Pennsylvania Right-to-Know Law, 65 P.S. §§ 67.101-3104,
(“RTKL”) applies to this
Contract. For the purpose of these provisions, the term “the
Commonwealth” shall refer to the contracting Commonwealth
agency.
b. If the Commonwealth needs the Contractor’s assistance in any
matter arising out of the
RTKL related to this Contract, it shall notify the Contractor using
the legal contact information provided in this Contract. The
Contractor, at any time, may designate a different contact for such
purpose upon reasonable prior written notice to the
Commonwealth.
c. Upon written notification from the Commonwealth that it requires
the Contractor’s
assistance in responding to a request under the RTKL for
information related to this Contract that may be in the
Contractor’s possession, constituting, or alleged to constitute, a
public record in accordance with the RTKL (“Requested
Information”), the Contractor shall:
1. Provide the Commonwealth, within ten (10) calendar days after
receipt of written
notification, access to, and copies of, any document or information
in the Contractor’s possession arising out of this Contract that
the Commonwealth reasonably believes is Requested Information and
may be a public record under the RTKL; and
2. Provide such other assistance as the Commonwealth may reasonably
request, in order to comply with the RTKL with respect to this
Contract.
d. If the Contractor considers the Requested Information to include
a request for a Trade
Page 27 of 28
Secret or Confidential Proprietary Information, as those terms are
defined by the RTKL, or other information that the Contractor
considers exempt from production under the RTKL, the Contractor
must notify the Commonwealth and provide, within seven (7) calendar
days of receiving the written notification, a written statement
signed by a representative of the Contractor explaining why the
requested material is exempt from public disclosure under the
RTKL.
e. The Commonwealth will rely upon the written statement from the
Contractor in denying a
RTKL request for the Requested Information unless the Commonwealth
determines that the Requested Information is clearly not protected
from disclosure under the RTKL. Should the Commonwealth determine
that the Requested Information is clearly not exempt from
disclosure, the Contractor shall provide the Requested Information
within five (5) business days of receipt of written notification of
the Commonwealth’s determination.
f. If the Contractor fails to provide the Requested Information
within the time period required
by these provisions, the Contractor shall indemnify and hold the
Commonwealth harmless for any damages, penalties, costs, detriment
or harm that the Commonwealth may incur as a result of the
Contractor’s failure, including any statutory damages assessed
against the Commonwealth.
g. The Commonwealth will reimburse the Contractor for any costs
associated with complying
with these provisions only to the extent allowed under the fee
schedule established by the Office of Open Records or as otherwise
provided by the RTKL if the fee schedule is inapplicable.
h. The Contractor may file a legal challenge to any Commonwealth
decision to release a
record to the public with the Office of Open Records, or in the
Pennsylvania Courts, however, the Contractor shall indemnify the
Commonwealth for any legal expenses incurred by the Commonwealth as
a result of such a challenge and shall hold the Commonwealth
harmless for any damages, penalties, costs, detriment or harm that
the Commonwealth may incur as a result of the Contractor’s failure,
including any statutory damages assessed against the Commonwealth,
regardless of the outcome of such legal challenge. As between the
parties, the Contractor agrees to waive all rights or remedies that
may be available to it as a result of the Commonwealth’s disclosure
of Requested Information pursuant to the RTKL.
i. The Contractor’s duties relating to the RTKL are continuing
duties that survive the
expiration of this Contract and shall continue as long as the
Contractor has Requested Information in its possession.
V.49 CONTRACT-053.1 Enhanced Minimum Wage Provisions (July
2018)
1. Enhanced Minimum Wage. Contractor/Lessor agrees to pay no less
than $12.00 per hour
to its employees for all hours worked directly performing the
services called for in this Contract/Lease, and for an employee’s
hours performing ancillary services necessary for the performance
of the contracted services or lease when such employee spends at
least twenty per cent (20%) of their time performing ancillary
services in a given work week.
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2. Adjustment. Beginning July1, 2019, and annually thereafter, the
minimum wage rate shall be increased by $0.50 until July 1, 2024,
when the minimum wage reaches $15.00. Thereafter, the minimum wage
rate would be increased by an annual cost-of-living adjustment
using the percentage change in the Consumer Price Index for All
Urban Consumers (CPI-U) for Pennsylvania, New Jersey, Delaware, and
Maryland. The applicable adjusted amount shall be published in the
Pennsylvania Bulletin by March 1 of each year to be effective the
following July 1.
3. Exceptions. These Enhanced Minimum Wage Provisions shall not
apply to employees:
a. exempt from the minimum wage under the Minimum Wage Act of 1968;
b. covered by a collective bargaining agreement; c. required to be
paid a higher wage under another state or federal law governing
the
services, including the Prevailing Wage Act and Davis-Bacon Act; or
d. required to be paid a higher wage under any state or local
policy or ordinance.
4. Notice. Contractor/Lessor shall post these Enhanced Minimum Wage
Provisions for the
entire period of the contract conspicuously in easily-accessible
and well-lighted places customarily frequented by employees at or
near where the contracted services are performed.
5. Records. Contractor/Lessor must maintain and, upon request and
within the time periods
requested by the Commonwealth, furnish all employment and wage
records necessary to document compliance with these Enhanced
Minimum Wage Provisions.
6. Sanctions. Failure to comply with these Enhanced Minimum Wage
Provisions may result
in the imposition of sanctions, which may include, but shall not be
limited to, termination of the contract or lease, nonpayment,
debarment or referral to the Office of General Counsel for
appropriate civil or criminal referral.
7. Subcontractors. Contractor/Lessor shall include the provisions
of these Enhanced
Minimum Wage Provisions in every subcontract so that these
provisions will be binding upon each subcontractor.
V.1 CONTRACT-001.1a Contract Terms and Conditions (Nov 30
2006)
V.2 CONTRACT-002.1d Term of Contract – Contract (May 2012)
V.3 CONTRACT-002.2a Renewal of Contract Term (Nov 30 2006)
V.4 CONTRACT-002.3 Extension of Contract Term (Nov 30 2006)
V.5 CONTRACT-003.1b Signatures – Contract (July 2015)
V.6 CONTRACT-004.1a Definitions (Oct 2013)
V.7 CONTRACT-005.1b Agency Purchase Orders (July 2015)
V.8 CONTRACT-006.1 Independent Prime Contractor (Oct 2006)
V.9 CONTRACT-007.01b Delivery of Services (Nov 30 2006)
V.10 CONTRACT-007.02 Estimated Quantities (Nov 30 2006)
V.11 CONTRACT-008.1a Warranty (Oct 2006)